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Jakarta Post

Criminalizing adultery in Criminal Code will do more harm than good: Activists

  • Ramadani Saputra
    Ramadani Saputra

    The Jakarta Post

Jakarta   /   Sun, May 17, 2020   /   07:54 am
Criminalizing adultery in Criminal Code will do more harm than good: Activists Police shoot water cannons to disperse protesters in front of the House of Representative compound on Sept. 24, 2019. Students from various universities gathered to protest a revision to the Criminal Code (KUHP), which they fear might threaten democracy. (JP/Donny Fernando)

A young couple from Cikupa, Banten identified only as R and M experienced what could be considered the worst night of their lives in November 2017.

A mob accused M and her partner of engaging in premarital sex, which is legal in Muslim-majority Indonesia but frowned upon in religious circles.

Accusations led to an assault, with the mob demanding that R and M admit to having had sex despite a lack of evidence. The couple was stripped and paraded around the neighborhood.

A video of their assault went viral on social media, prompting the involvement of the police. The ensuing investigation concluded that the couple had not committed any wrongdoings.

The police then arrested six people, including the heads of the surrounding community units (RT) and neighborhood units (RW) and brought the case to trial.

While R and M may have escaped further public shaming, rights activists fear that the incident might become the norm as the House of Representatives moves to continue deliberations on the draconian Criminal Code (KUHP) revisions.

The decision to push ahead with the revision of contentious articles comes amid the struggle against COVID-19, which has infected upwards of 16,000 people and killed more than 1,000.

The final draft of the KUHP revision still includes articles that critics fear would overcriminalize common social practices, such as cohabitation and consensual sex between unmarried people.

The bill could also lead to more acts of vigilantism such as in the Cikupa case and may target vulnerable groups, including women and the destitute.

In a recent virtual discussion on criminalizing adultery, women’s rights activist Naila Rizai Zakiah said lawmakers had been ignoring expert opinion relating to articles on adultery, especially in regard to the parties that have the right to make the report.

Adultery in the proposed KUHP revision is stipulated in articles 417, 418 and 419, in which the parents, husband, wife or children of the offenders could report a case to the police.

Naila insisted that only the husband or wife should be able to report such cases to the police — as stipulated in the current code — as they are the only parties whose rights are being violated.

“In stipulating terms for adultery, the Criminal Code values privacy in that only partners may report [the violation],” she said.

“Overcriminalization not only harms the country but also its people [...] That mistake should not be repeated.”

To include zina (adultery) in the Criminal Code is in itself an impossible task, moderate Islamic scholar Musdah Mulia said, as people struggle to define what exactly the term constitutes.

Raising the issue in the planned revisions would only create more problems than solutions, she said, as criminalizing adultery would lead to more injustices for women — not so much for men.

“The proof that is often used to show that someone has committed adultery is pregnancy. In this case, women are trapped while the men can just dodge the case,” she said.

Musdah, a professor at the Syarif Hidayatullah State Islamic University (UIN), urged the state to focus on developing public awareness on morality, including though proper sex education instead of criminalizing adultery in the penal code.

Indonesia has in recent years been blamed for contributing to the erosion of civil liberties by allowing for the criminalization of free speech through regulations such as the Electronic Information and Transactions (ITE) Law and the Narcotics Law.

Activists argue that conservative legislators have for years attempted to test the limits of freedoms by revising the draconian penal code, which has remained largely unchanged since it was inherited from the Dutch colonial era.

But now critics fear that politicians could hide behind the veil of physical distancing and other social restrictions brought on by COVID-19 to pass the Criminal Code bill without public scrutiny.

Deciding to continue the deliberation of the penal code bill itself was erroneous, Naila said, as one of the requirements that lawmakers must fulfill in enacting new legislation was public participation, which can’t be fulfilled because of the need to shelter in place.

House deputy speaker Azis Syamsuddin announced last month that legislators would continue to deliberate the bill, prompting strong objections from activists.

Last year, thousands of students took to the streets to protest the bill. They successfully persuaded the House to halt the deliberation process before its last term ended in October.